On Its 229th Birthday, Our Constitution Hangs by a Thread

17 Sep 2016

On this day in 1787, the founders of this nation finished writing a Constitution that in the intervening 229 years has helped make America the greatest nation on earth. When voters go to the polls on Nov. 8, the American people will decide whether that document will continue to serve as the Supreme Law of the Land.

America declared its independence from Great Britain in 1776. Then in 1777 the signers of the Declaration adopted the Articles of Confederation, creating a common government that would bind the 13 newly minted states together as a nation, forming a confederation of sovereign states.

But it became clear that America would not survive under the Articles. Americans stuck together through the Revolutionary War, united against a common enemy. But after Britain’s General Cornwallis surrendered to George Washington at Yorktown in 1781, the new nation started to unravel.

America’s leaders knew they needed a new national compact, one that would regulate interstate commerce, guarantee a common defense, and empower the United States to speak with a unified voice on the world stage.

Their solution was the Constitution. For the first time in human history, a people decided to govern itself through a written document, one that would supersede every ruler and authority. All public officials and military officers would be required to take an oath to support and defend this Constitution before they could assume the powers of their office.

The Constitution was premised on the Framers’ mistrust of government power. They took that power and broke it, separating it into two levels: federal and state. The states were left free as sovereign institutions to structure their government however they wanted, so long as it was a republican government.

For the federal government, they broke its power again, this time into three branches: legislative, executive, and judicial. The Constitution defines the separate powers of each branch (called the “separation of powers,”) and also gave each branch a way to restrain the other two (called “checks and balances.”)

The Framers knew that the Constitution would not be perfect, so they also included a mechanism for amending it. Then once the Constitution was ratified, the American people immediately amended it with a Bill of Rights to specify certain rights that the American people would possess (called “enumerated rights,”) including First Amendment rights to free speech and religious liberty, the Second Amendment right to bear arms, the Fourth Amendment right against unreasonable searches and seizures, and Fifth Amendment rights of due process, property rights, and the right to avoid self-incrimination. Those who adopted these amendments also reaffirmed in the Tenth Amendment that unless the Constitution specifically vests a matter with the federal government, those matters were left with the states or the people (called “federalism.”)

The Framers kept the Constitution short; it is only 4,440 words. The Framers wrote it in a way so that the voters could read it and understand it, and then use it as the yardstick by which to measure all their elected leaders. By reading it, the voters would know what the powers of government are and what their rights as citizens are, and compel government officials to respect both.

That’s why originalism—the view that the words of the Constitution must be interpreted according to the original public meaning of its words, the meaning which ordinary Americans understood those words to carry—is the only legitimate way to interpret the Supreme Law of the Land. Anything less subverts the will of the American people and the democratic process.

In recent decades, the federal government has increasingly strayed from the Constitution, with only brief reprieves, such as during the Reagan years.

But over the past eight years, the United States has seen truly unprecedented threats to the constitutional order:

The Obama administration argued for the first time that its power to regulate interstate commerce includes the power to order Americans to buy certain things with their own private money (e.g., health insurance).

Obama argued that he had the power to do an end-run around the Senate by making recess appointments whenever senators weren’t literally on the Senate floor to do business.

Obama launched a unilateral war against Libya without congressional approval.

Obama argued he had the power to change immigration law to grant amnesty to 4.5 million illegal aliens.

And now, Obama argues that current civil rights laws require all schools and employers to embrace homosexuality and transgenderism, with the chairman of his civil rights commission saying that terms like “religious liberty” are code words for illegal discrimination.

Most of these issues have lost by a single vote at the U.S. Supreme Court. But now one of the freedom-loving defenders of America’s constitutional order—Justice Antonin Scalia—has passed away. If his seat is filled by a liberal who rejects originalism in favor of a “Living Constitution”—essentially ignoring the Constitution’s text by saying its words must be “reinterpreted” to agree with modern leftist ideas—then Americans will not recognize their country four years from now.

Hillary Clinton places that beyond doubt. She threatens that the Supreme Court’s Citizens United decision (which held that groups like the National Rifle Association have free-speech rights and can run ads during election season) must be overruled, and that the Court was wrong in Heller to hold that law-abiding American citizens have a right to own a gun at home.

She says that Christian beliefs on abortion, marriage, sexuality, and gender roles “have to be changed.” Shockingly, she even says that observant Christians and constitutional conservatives are “deplorable” and “irredeemable.”

She promises to grant not just legal status—but citizenship and voting rights—to 11 million illegal aliens, and stop voter-ID laws and other measures that safeguard the ballot box, to ensure that neither she nor her allies can be voted out of office.

And Clinton vows that she will appoint judges who will side with her when these assaults on the Constitution are challenged in court.

Compare that pledge with Donald Trump’s commitment to appoint constitutionalists to the bench and his list of potential Supreme Court justices that amounts to a conservative goldmine of originalists.

The choice could not be clearer. America is at a fork in the road on whether we will continue to be a nation under the rule of law crowned by a written Constitution. At stake is nothing less than whether America’s next two centuries follow the same course as its first two centuries.